In April, scientists achieved a major breakthrough that could one day drastically improve the fate of babies born extremely prematurely. Eight premature baby lambs spent their last month of development in an external womb that resembled a high-tech ziplock bag. At the time, the oldest lamb was nearly a year old, and still seemed to be developing normally.
This technology, if it works in humans, could one day prove lifesaving for the 30,000 or so babies each year that are born earlier than 26 weeks into pregnancy.
It could also complicate—and even jeopardize—the right to an abortion in an America in which that right is predicated on whether a fetus is “viable.”
“The Supreme Court has pegged the constitutional treatment of abortion to the viability of a fetus,” I. Glenn Cohen, a Harvard Law School bioethicist, told Gizmodo. “This has the potential to really disrupt things, first by asking the question of whether a fetus could be considered ‘viable’ at the time of abortion if you could place it in an artificial womb.”
Cohen raised this issue in a report for the Hastings Center published on Friday.
A normal human pregnancy lasts about 40 weeks. In Roe v. Wade, the case that ultimately legalized abortion in 1973, the Supreme Court ruled that whether a fetus was capable of surviving outside the womb was an important test of whether an abortion was legal. The Court said that viability typically began at some point during the third trimester, which begins at 24 weeks, but could really only be determined on a case by case basis. In 1992, Planned Parenthood vs. Casey reaffirmed that viability is key in defining a state’s power to regulate abortion. The number of weeks at which you can legally procure an abortion varies between 22 and 24 weeks by state. (If a woman’s health is at risk, the state cannot enforce an abortion ban at any stage of development.)
The human version of the external lamb womb that researchers eventually envision creating would be designed for premature babies born as early as 23 weeks. Researchers hope to test it on premature human babies within five years. (Lambs have a shorter gestation period; the 105- to 115-day-old premature lamb fetuses were the equivalent of about 23 weeks in a human.)
In the future, Cohen said, it stands to reason that this technology could save the lives of fetuses born even earlier. Imagine then, that you had made the decision to terminate a pregnancy at 18 weeks, but that such a technology technically made it viable for the fetus to be born at that point in development, then finish developing outside the womb. Would an abortion still be legal?
“It could wind up being that you only have the right to an abortion up until you can put [a fetus] in the artificial womb,” said Cohen. “It’s terrifying.”
The advent of such artificial womb technology highlights how fragile—and dated—much of the law surrounding the right to an abortion really is.
In a 1983 decision, Justice Sandra Day O’Connor argued that Roe vs. Wade was on a “collision course with itself,” because improvements in technology would make it possible for a fetus to continually be viable earlier in the course of a pregnancy. In some cases, today, a fetus can now survive outside the womb at 22 weeks, two whole weeks earlier than at the time of Roe vs. Wade.
“In 1990 a woman maybe could have an abortion at 25 weeks, but in 2020 perhaps it will be 20 weeks,” said Cohen. “There’s a problem when an abortion that would be legal in one decade is not in another under the Constitution.”
Developing technology also tests the rhetoric surrounding the right to choose. A woman’s right to control her own body is a common legal and ethical argument made in favor of abortion. Under that logic, though, the law could simply compel a woman to put her fetus into an external womb, giving her back control of her own body but still forcing her into parenthood.
The way the law has thus far defined it, Cohen said, is that a woman has a right to stop carrying a child. It doesn’t consider whether she also has a right to control what happens to the child if she is no longer responsible for carrying it. It could come down to an interpretation of what qualifies as control.
“If you think the reason we have abortion rights is that women have a right to control their own bodies, this is saying you can control your own body, just give the fetus to someone else and they’ll put it in an artificial womb,” he said.
How invasive the procedure to remove a fetus, Cohen said, could influence how that all shakes out. If removing a fetus from the womb still required surgery, for example, a woman might be able to legally refuse surgery instead.
All of this may seem too hypothetical to be worth considering—after all, there’s no telling whether the technology that worked in lambs will translate to human babies. And the number of women who have abortions that late into their pregnancy is small. Somewhere around 9,090 women in the US had abortions after their 21st week of pregnancy in 2012, accounting for just 1.3 percent of all abortions. (Many of that subset seek abortions for health reasons. And again, new technologies would be unlikely to impact late-stage abortions deemed necessary for the health of a mother.)
But Sandra Day O’Connor was right—already, states have been emboldened by improving neonatal care in making laws that restrict abortion earlier and earlier in a woman’s pregnancy. Physicians, legal experts and bioethicists have long taken issue with viability as a standard for legality. (There is a lot of inconclusive debate about what might make a better standard.)
“There have always been problems with this standard,” Cohen said. “But now there’s good reason to believe it could get even worse.”